Friday, July 27, 2012

High Court:Twitter joke trial had no clothes

Paul Chambers has finally received some justice from the courts. The High Court has today overturned his conviction relating his joke, on Twitter, about blowing up Robin Hood Airport or as the police, CPS, magistrates and Crown Court would describe it: sending, by a public electronic communication network, a message of a "menacing character" contrary to sections 127(1)(a) and (3) of the Communications Act 2003. S127 says:

"(1)A person is guilty of an offence if he—
(a)sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character...

(3)A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both."

The basic story is well known. Chambers (@pauljchambers on Twitter) was going to Belfast to meet a woman he had connected with via Twitter. Due to adverse weather the Robin Hood Airport in Doncaster closed. The High Court (Lord Judge, Mr Justice Owen, Mr Justice Griffith Williams) continues the story at paragraph 12 -

On 6 January 2010, following an alert on “Twitter”, the appellant became aware of problems at Doncaster, Robin Hood Airport, due to adverse weather conditions. He and Crazycolours had a dialogue on “Twitter”. Two messages were referred to in the Crown Court. They were:
“@ Crazycolours: I was thinking that if it does then I had
decided to resort to terrorism”:
“@ Crazycolours: That’s the plan! I am sure the pilots will be expecting me to demand a more exotic location than NI”.
In context, this seems to have been a reference to the possibility of the airport closing, but the picture was incomplete because no reply from Crazycolours was produced. Some two hours later, when he heard that the airport had closed, he posted the following message:
“Crap! Robin Hood Airport is closed. You’ve got a week and a bit to get your shit together otherwise I am blowing the airport sky high!!”

There was no evidence anyone found this joke threatening. In fact nothing was done about it by anyone until 11 January 2010, some five days later when the duty manager responsible for security at Robin Hood Airport, while off duty at home, found it. He didn't know if it was a joke but thought even if it was it could cause major disruption. So he referred it to his manager. Procedure dictated that his manager should refer "credible threats" immediately to the Ministry of Defence. "Non credible" threats were to be referred to the police. He judged it non credible and referred it to the airport police. The airport police referred it to South Yorkshire police.

They then, seven days after the original tweet, sent the anti-terrorist squad round to Paul Chambers' workplace and arrested him on suspicion of involvement in a bomb hoax. They made very sure his work colleagues knew why they were there and Chambers was subsequently sacked.

At some stage during his extended questioning by the police Chambers responded to a question about whether "some" people might get concerned about his tweet by saying "Yah. Hmm mmm". This would come back to haunt him as it was given significant emphasis in his subsequent magistrates trial and appeal in the Crown Court. In any case in the S. Yorks police credit goes to the investigating officer who when the investigation was completed recorded the incident officially (on the 10th February) thus:

“Male detained re making threats to Doncaster Robin Hood Airport. The male in question has been bailed and his phone/computer has been seized – there is no evidence at this stage to suggest that there is anything other than a foolish comment posted on “Twitter” as a joke for only his close friends to see.”

However, someone at S. Yorkshire police consulted the Crown Prosecution Service and they decided to charge Paul Chambers with menacing threats via a public electronic communications network contrary to section 127(1)(a).

What is notable about the story is that nobody, from the airport manager and his boss through to the police officers who did the investigation, thought there was a credible threat. An investigating police officer was the only one to go on record to say he accepted it was a joke.

Everyone else was playing CYA. They knew Chambers' tweet was a joke even if they didn't find it funny. There was no urgency about the way they acted. It was all about ticking the right boxes on the right forms to be seen to be following procedures.

He was convicted and that conviction subsequently upheld by the Crown Court which was "satisfied" that the tweet was "menacing per se" and that "an ordinary person" seeing it "would see it that way and be alarmed. The airport staff did see it and were sufficiently concerned to report it."

"18. The Crown Court went on to hold “that the required mens rea … is that the person sending the message must have intended the message to be menacing, or be aware that it might be taken to be so …” The court was satisfied that the appellant was, at the very least, aware that his message was of a menacing character."

As to that latter point the Crown Court put a disproportionate emphasis on Chambers' "Yah hmm mmm" response to the police interview question about whether he thought "some" people might be alarmed by his tweet. One indistinct response amidst hours of questioning was evidence that Chambers "was, at the very least, aware that his message was of a menacing character"? It brings to mind Cardinal Richelieu's mantra about finding enough evidence in a mere six lines of anything any honest man has written to hang him.

The Crown Court, in fairness, did go onto to pose a significant series of really interesting questions for the High Court about how s127(1)(a) should be interpreted. The High Court reproduces these questions in paragraph 19 of their decision but I'll leave it to the real lawyers to dissect those. For the purposes of this treatise, suffice it to say those questions demonstrate a significant part of the problem with these types of cases is s127 itself, not just the CYA mentality of some of the actors involved.

The High Court agreed with the Crown Court that tweeting is sending messages by means of a "public electronic communications network" even though Twitter is a private company. This analysis is at para 21 - 25. There is a fault line in this analysis at paragraph 21 where emphasis is given to "potential recipients of the message" being "the public as a whole". If that is read across to Facebook, Google or any other tech giant operational practices it could have significant implications for personal privacy. However that's not the primary focus here. The Court then gets to the heart of the case, the actus reus or the conduct of the accused.

They point out that it is appropriate to have a s127 type offence relating to the internet and it is merely an updating of the prohibition against the misuse of the telephone to communicate menacing messages. They also don't believe s127 created "some newly minted interference with the first of President Roosevelt’s essential freedoms – freedom of speech and expression."

"Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level, quite undiminished by this legislation. Given the submissions by Mr Cooper, we should perhaps add that for those who have the inclination to use “Twitter” for the purpose, Shakespeare can be quoted unbowdlerised, and with Edgar, at the end of King Lear, they are free to speak not what they ought to say, but what they feel."

The problem comes in trying to figure out how to actually interpret s127. An offence cannot be proved unless the content of the message was of a menacing character. But there is “disappointingly little coherence in English law’s approach to threat offences” (Smith and Hogan’s Criminal Law, 13th edition, at p951) so "we do not think that an analysis of the numerous other offences based on threats, including blackmail, takes the interpretation of this statutory provision any further." So the Court gives its interpretation at paragraph 30 initially of what s127 cannot cover.

"In short, a message which does not create fear or apprehension in those to whom it is communicated, or who may reasonably expected to see it, falls outside this provision, for the very simple reason that the message lacks menace."

They go on at paragraph 31 to admonish the Crown Court, gently:

"In any event, the more one reflects on it, the clearer it becomes that this message did not represent a terrorist threat, or indeed any other form of threat. It was posted on “Twitter” for widespread reading... Much more significantly, although it purports to address “you”, meaning those responsible for the airport, it was not sent to anyone at the airport or anyone responsible for airport security, or indeed any form of public security. The grievance addressed by the message is that the airport is closed when the writer wants it to be open. The language and punctuation are inconsistent with the writer intending it to be or to be taken as a serious warning... it is difficult to image a serious threat in which warning of it is given to a large number of tweet “followers” in ample time for the threat to be reported and extinguished."

In paragraph 32, Lord Judge, Mr Justice Owen and Mr Justice Griffith Williams emphasise the point that a menacing message "does not cease to be so just because it was not received or because the person who received it was not, in the context of the present prosecution, menaced. The effect of the message on those who read it is not excluded from the consideration." Nevertheless they then quietly eviscerate the chain of authority responsible for the case ending up in court - saying no one was sufficiently bothered by the tweet to engage in any urgent security measures, other than to make sure their asses were covered by referring it up the line. Nobody thought it was a credible threat or took any action other than to refer it to the next actor in the chain of procedure.

"More important, because they would have been quite uninfluenced by their knowledge of the appellant deduced from his previous messages, the two gentlemen responsible for the safety of the airport showed no anxiety or urgency in dealing with it. It was treated and addressed as if it was not a credible threat. The airport police took no action. No evidence was provided to suggest that even minimal consequential protective measures were taken at the airport, or that the level of perceived threat was heightened. Indeed, notwithstanding the nature of the “threat”, we can detect no urgent response to it. Police action was not exactly hurried. After the investigation, the South Yorkshire Police concluded that the appellant presented no threat. Although this conclusion reflected the outcome of the investigation rather than the immediate reaction to the text of the message, it was in fact entirely consistent with the attitude and approach of those who had seen the message before the investigation began."

The noble judges are no less scathing about the decision of the Crown Court whilst declaring that "proper respect must be paid" to that court's finding that Mr Chambers tweet was of a menacing character. I can just hear Nigel Hawthorne as Sir Humphrey "With respect Prime Minister..."

"No weight appears to have been given to the lack of urgency which characterised the approach of the authorities to this problem, while the fact that those responsible for security at the airport decided to report it at all, which was treated as a significant feature, rather overlooked that this represented compliance with their duties rather than their alarmed response to the message. By contrast, disproportionate weight seemed to be placed on the response of the appellant in interview to how “some” people might react, without recognising that the care needed to approach such a widely phrased question in context. The response was part of the interview as a whole, when looking back at what the appellant admitted he had done and his assertions that it was a joke. The question based on what “some” people might think embraced everyone, included those who might lack reasonable fortitude. This entirely equivocal response added nothing which supported the contention that the message was of a menacing character."

In other words everyone was ignoring the fact that this prosecution - this whole case - had no clothes. It was a joke and everyone knew it but were playing CYA. And because everyone was playing CYA certain factors were accorded disproportionate significance - Mr Chambers one "Ya hmm mmm" response amidst hours of questioning, the 'no smoke without fire' CYA referrals up the chain by airport management, airport police, S. Yorkshire police, CPS and eventually courts. Not enough prominence was given to the simple fact that the tweet lacked any conceivable menace - Mr Chambers had been joking and everybody knew it but nobody was prepared to admit it. The High Court therefore conclude:

"34... that, on an objective assessment, the decision of the Crown Court that this “tweet” constituted or included a message of a menacing character was not open to it. On this basis, the appeal against conviction must be allowed."

There was no threat, no menace, no actus reus, no criminal conduct. Since there was no criminal act they don't need to consider in detail whether there was any criminal intent or mens rea. They do, however, address the issue briefly in the final page of the decision (paragraphs 35 - 38).

"In consequence we are unable to accept that it must be proved that, before it can be stigmatised as criminal, the sender of the message must intend to threaten the person to whom it was or was likely to be communicated, or that such a specific purpose is a necessary ingredient of the offence. That would, in effect involve an offence of specific intent which Parliament elected not to create...

38. We agree with the submission by Mr Robert Smith QC that the mental element of the offence is satisfied if the offender is proved to have intended that the message should be of a menacing character (the most serious form of the offence) or alternatively, if he is proved to have been aware of or to have recognised the risk at the time of sending the message that it may create fear or apprehension in any reasonable member of the public who reads or sees it. We would merely emphasise that even expressed in these terms, the mental element of the offence is directed exclusively to the state of the mind of the offender, and that if he may have intended the message as a joke, even if a poor joke in bad taste, it is unlikely that the mens rea required before conviction for the offence of sending a message of a menacing character will be established. The appeal against conviction will be allowed on the basis that this “tweet” did not constitute or include a message of a menacing character; we cannot usefully take this aspect of the appeal further."

So there's a sting in the tail here. Even without intending menace someone can still be convicted under s127 if they "recognised the risk at the time of sending the message that it may
create fear or apprehension in any reasonable member of the public".

Even by this test, though, Paul Chambers' joke should never have got anywhere near a courtroom. Congratulations to Mr Chambers and his legal team for having the perseverance to pursue this case to an ultimately just conclusion.

Kudos too to Lord Judge, Mr Justice Owen and Mr Justice Griffith Williams who, albeit it in the politest of legalise, were prepared to call out the CYA elephant in the room. Ironically, with CYA situations, the higher up the chain of authority a non issue goes, the riskier it becomes for individual actors to call a halt to the nonsense. The feeling that 'it must be a big deal if it's got this far' just increases all the way up and the pressure to 'do something about it' just builds and builds. And since no one can be blamed for following procedure or orders, the safe option is always to do so.

Systems built on the premise that, at every stage, the right option is the perceived risky option will regularly lead to the kind of systemic insanity that led to the persecution, prosecution and unjust conviction of Paul Chambers. The insanity becomes an emergent and defining feature of the system. When it is the criminal justice system, weighed down already by decades of fear induced, hyperactive, unintelligible law making of the political digerati, then we all have reasons to be concerned. Thankfully, on this occasion, Paul Chambers' odious and ridiculous conviction has finally been quashed.

Update: Edited for typographical errors. Also according to one of his lawyers, David Allen Green, the High Court has now issued an order that Paul Chambers' legal costs be covered.